One problem with moral turpitude is that the “incapable of precise definition” squishiness of the concept makes it difficult to evaluate the evidence. “Incapable of precise definition” becomes a variant of “I know it when I see it” and thus self-evident. Witness this decision from the Hearing Department of the State Bar Court.
Another squishy legal doctrine appears in the decision. The Office of Chief Trial Counsel also alleged that the respondent breached his duty to uphold the law of the State of California under Business and Professions Code section 6068(a) by committing breaches of fiduciary duty against his client (at page 37.) In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, 487 held that section 6068(a) could serve as a “gateway” statute to find an an attorney culpable for a disciplinary violation of an “established common law governing the conduct of attorneys which is not governed by any other statute. Lilley cited Layton v. State Bar (1989) 50 Cal. 3d 889, a case where the Supreme Court held that an attorney could be found culpable of failing to communicate with client under section 6068(a) prior to the amendment to the statute (creating section 6068(m)) making communication an explicit statutory duty. Exactly how far the Lilley holding stretches is unclear. But the Hearing Department found no evidence of breach of fiduciary duty.
Assuming the exoneration stands, the attorney who paid for this five day trial will be entitled to recover his out of pocket costs but not his attorney fees. Not to mention the emotional toll of the discipline proceeding. So it’s a little hard for the respondent attorney to claim this as a victory. More like a lose-lose for all concerned. If he could recover his attorneys fees, maybe this would be some approximation of justice. But until then we may have to settle for the squishy kind.
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